Triangle Plastics, Inc.

National Labor Relations Board - Board Decisions

Jun 21, 1971

191 N.L.R.B. 347 (N.L.R.B. 1971)

TRIANGLE PLASTICS, INC. 347
Triangle Plastics, Inc. and International Union,
United Automobile ,'Aerospace and Agricultural Im-
plement Workers of America (UAW). Case 7-CA-
7323
June 21, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS BROWN
AND JENKINS
On February 17, 1971, Trial Examiner Herzel H. E.
Plaine issued his Decision in the above-entitled pro-
ceeding, finding that the Respondent had engaged in
and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations
Act, as amended, and recommending that it cease and
desist therefrom and take certain affirmative action, as
set forth in the attached Trial Examiner's Decision. He
further found that the Respondent had not engaged in
certain other unfair labor practices alleged in the com-
plaint and recommended that such allegations be dis-
missed. Thereafter, the Respondent and the General
Counsel filed exceptions to the Trial Examiner's Deci-
sion and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its powers
in connection with this case to a three-member panel.
The Board has reviewed the rulings of the Trial Ex-
aminer made at the hearing and finds that no prejudi-
cial error was committed. The rulings are hereby
affirmed. The Board has considered the Trial Ex-
aminer's Decision, the exceptions and briefs, and the
entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner, as modified herein.'
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order, as
modified below, of the Trial Examiner and hereby or-
ders that the Respondent, Triangle Plastics, Inc., De-
troit, Michigan, its officers, agents, successors, and as-
signs, shall take the action set forth in the Trial
Examiner's recommended Order, as modified herein.
' In connection with his 8(a)(5) finding, predicated upon the Respond-
ent's action in denying the Union access to the plant while in operation, the
Trial Examiner ordered the Respondent to give unlimited access to the plant
at any time during its operation. We find that such an order is too broad and,
accordingly, we shall limit such visitation rights to reasonable times and
places.
1. Delete paragraph 2(a) of the Trial Examiner's
recommended Order, and insert in place thereof the
following:
(a) On request, grant to the Union's representatives,
at reasonable times and places, access to the plant when
in operation, in order to make their own observations
and studies of plant jobs, operating conditions, facili-
ties, and like matters related to negotiation of a collec-
tive-bargaining contract on behalf of the employees.
2. Substitute the attached Appendix B for the Trial
Examiner's Appendix B.
CHAIRMAN MILLER, concurring:
While I would find most of the Respondent's
speeches within the protection of Section 8(c) of the
Act, its statements to the effect that the bargaining
would determine whether the employees would have the
Union taints its course of conduct sufficiently to justify
an 8(a)(1) finding and remedial order.
APPENDIX B
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL, on request, grant to the representa-
tives of the Union, International Union, United
Automobile, Aerospace and Agricultural Imple-
ment Workers of America (UAW), 'at reasonable
times and places, access to the plant while in oper-
ation, in order to make their own observations and
studies of plant jobs, operating conditions, facili-
ties, and like matters related to negotiation of a
collective-bargaining contract on behalf of the em-
ployees-
WE WILL NOT make coervice speeches or state-
ments to you to discourage you from continuing as
or becoming members of the Union. In particular
WE WILL NOT suggest doubt of the Union's
majority,, represent that we have control over
whether the employees may have the Union or
that we have control over payment or waiver of
union initiation fees or payment of union dues, or
suggest the futility of employees selecting the
Union because the Union would be unreasonable
and the bargaining would not be successful, or
urge employees to bring their problems and griev-
ances to us while contract negotiations are in
progress.
WE WILL NOT coercively interrogate you con-
cerning your sympathy or support for the Union.
WE WILL NOT in any like manner interfere with
your right to join, assist, or be represented by a
labor union, or interfere with any of your rights of
self-organization and mutual aid guaranteed un-
191 NLRB No. 66
348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
der Section 7 of the National Labor Relations Act.
TRIANGLE PLASTICS,
INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, 500 Book Building, 1249 Washington Boule-
vard, Detroit, Michigan 48226, Telephone 313-226-
3200.
TRIAL EXAMINER'S DECISION
HERZEL H.E. PLAINE, Trial Examiner : A Board order,
Triangle Plastics, Inc., 166 NLRB 768 (1967), enforced by
the United States Court of Appeals for the Sixth Circuit,
N.L.R.B. v. Triangle Plastics, Inc., 70 LRRM 2702 (C.A. 6,
February 6, 1969), directed Respondent to recognize and to
bargain with the Charging Party (the Union) as the collec-
tive-bargaining representative of the unit of production and
maintenance employees at Respondent 's Roseville, Michi-
gan, manufacturing plant. As a result, negotiations for a con-
tract began in April 1969.
The negotiations have broken off twice without a com-
pleted agreement . The first series, begun in April 1969, came
to a halt in October 1969. The second series, resumed in June
1970, halted again in August 1970.
Under the complaint (issued in this case October 15 and
amended October 20, 1970, and at trial , on a charge filed May
5, 1969, and amended October 9, 1970), the Respondent is
charged with obstructing negotiations by denying the Union's
bargaining representatives access to the plant to gather infor-
mation on operations and operating conditions necessary to
fulfill the Union's responsibility to bargain for the employees.
In addition, Respondent is charged with having impeded the
negotiations by refusing, between November 19, 1969, and
June 18, 1970, to supply the Union with pertinent wage data;
and, with having sought to unlawfully dissipate the Union's
strength and employee allegiance by coercive speeches to, and
interrogation of, employees in April 1969 prior to and about
the time of the first bargaining session . Respondent 's conduct
is variously alleged to violate Section 8(a)(l) and (5) of the
National Labor Relations Act (the Act).
Respondent by its answer denied any wrongdoing .' As the
result of the evidence produced at trial, Respondent acknowl-
edges that it refused to give the union representatives the
plant access they requested, but contends that Respondent
had no obligation to provide the access and, if it did, the
obligation was satisfied by its offer, during the second series
' Respondent 's answer also had the appearance of denying that the Union
was the bargaining representative of the unit employees However , at trial,
counsel for Respondent clarified its position to state that Respondent
conceded that the Union was the legal representative of the unit and that
Respondent recognized and was bargaining with the Union as such.
of negotiating meetings , in June 1970, to allow access on a
Sunday (when the plant was not in operation).
The case was tried December 16-17, 1970, at Detroit,
Michigan . Counsel for the General Counsel briefed his case
in oral argument at the conclusion of the trial (Transcript pp.
323-329). Counsel for the Respondent waived oral argument
and filed a written brief.
Upon the entire record of the case ,' including my observa-
tion of the witnesses , and after due consideration of the briefs,
I make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent is a Michigan corporation engaged in the
manufacture and sale of plastic parts used in the automotive
industry . Its plant is in Roseville, Michigan.
During the fiscal year ending June 30, 1968, which period
is representative of its operations , Respondent sold and dis-
tributed goods valued in excess of $50 ,000 from its plant in
Roseville to points outside Michigan.
Respondent is, as it concedes , an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.'
The Union is, as the parties admit , a labor organization
within the meaning of Section 2(5) of the Act.
II THE UNFAIR LABOR PRACTICES
A. Speeches and Interrogation
Following the court enforcement of the bargaining order in
February 1969, the Respondent and Union met in their first
bargaining meeting on April 14, 1969.
Several days before, on April 8, Respondent assembled all
of the bargaining unit employees of the three shifts in three
separate meetings to tell them that company bargaining with
the Union was about to begin , and of certain things that were
on management's mind. Appearing and speaking for Re-
spondent at all three meetings were the plant manager, Gene
Stiman ; the personnel manager of the Electrical Mechanical
Division of Essex International , Jerry Shields (see fn. 3,
supra); and the manufacturing manager of the same division,
' Corrections in the transcript of the testimony are set out in Appendix
A [ommitted from publication]
' Evidence provided by Respondent established (testimony of Jerry F
Shields division personnel manager of Essex International, Inc.) that Re
spondent (Triangle Plastics, Inc ) is currently but one plant among seven in
Michigan and Ohio, who comprise the Electrical Mechanical Division of
Essex International , Inc., which company acquired sole ownership of Re-
spondent in October 1967, some months after the Board order directing
Respondent to bargain was issued in the predecessor case, Triangle Plastics,
Inc., 166 NLRB 768 (July 1967 ), supra. It was established that Essex
International provides common management and centralized control of
labor relations for Respondent and its sister plants of the division, in addi-
tion to being the common owner. Under the tests for "single employer"
developed by the Board , 21stAnnual Report NLRB (1956) 14-15, restated
and approved in Sakrete ofNorthern California v N.L.R.B., 332 F. 2d 902,
905-908 (C_A 9, 1964), cert . denied 379 U.S 961, and by the Supreme
Court in Radio and Television Broadcast Technicians Local Union 1264 v.
Broadcast Service of Mobile Inc, 380 U.S. 255, 256 (1965), Essex Interna-
tional, Inc ., would easily qualify as the single employer in this case. How-
ever, both Respondent and the General Counsel resisted the suggestion of
the Trial Examiner that the complaint be amended to bring in Essex Interna-
tional as a party (either as the single employer or at least a joint employer).
Because the General Counsel was concerned that the amendment might
muddy the connection between this case and the predecessor case, supra,
and might hamper completion of this case which he felt he had completed
against the presently named corporate Respondent, and because he did not
anticipate any problems of enforcement if he were to prevail on the com-
plaint as presently framed , the suggestion for amendment was not pressed.
TRIANGLE PLASTICS, INC. 349
Leo Weber. Also present and introduced at the afternoon
shift meeting was Foreman Gerald (Jerry) Stewart. The tran-
scripts of what Stiman, Shields, and Weber said were stipu-
lated into evidence as GC-2 (midnight speeches), GC-3 (day
speeches) and GC-4 (afternoon speeches).
Summarizing, the speeches were essentially similar at all
three meetings, opening on the note (with the speaker asking
for a show of hands) that less than a majority of the present
employees were employed when the union organizing and
Board election took place in 1966, that even at that time the
Union did not represent the majority of employees, as shown
by the 23-20 vote against the Union in the election, but that
this fact was disregarded by the Board who relied upon repre-
sentation cards (neglecting to mention the Board findings of
company misconduct that voided the election results). Never-
theless, since the Board and Court had said, bargain with the
Union, the company was going to sit down and negotiate.
However, the employees were warned to watch out and not
be fooled into joining the Union now by a Union promise of
waiver of initiation fees that might not be waived later, be-
cause, "the matter of initiation fees or the matter of union
dues, or for that matter, the matter of belonging to a union
is a bargaining matter and is something that has to take place
between the UAW and Triangle." Of course (the speeches
went on) if Triangle agrees to a union shop clause then dues
are required, but the employees should know the company
will protect them, "if there is one person who does not pay
initiation fees then, by God, no one pays them."
Whether the company and Union could ever agree on a
labor contract (the speeches continued) is something we don't
know. Of course, the company will bargain in good faith, but
it is quite possible the Union will come in with unreasonable
demands and we (the company) will say "no." Then it will
be "business as usual" (the speeches concluded), meantime
we (the company) are going to keep you informed, and you
come to us with your questions and problems.
At each of the sessions, the employees were asked if they
had any questions, and in response Personnel Manager
Shields, Plant Manager Stiman, and Manufacturing Manager
Weber provided answers or comment amplifying or reiterat-
ing the matters covered in the speeches. Shields and Stiman
stressed heavily that the bargaining would determine whether
the employees have the Union, and whether the employees
are to be in the Union and pay initiation fees and dues were
bargaining matters.
The speeches were not isolated from action.
Former employee Christine Turcotte who worked in the
afternoon, or second, shift was among .the employees who
attended the meeting of the afternoon shift on April 8, 1969,
to hear the management speeches, exhibit GC-4. It was at
this meeting that Plant Manager Stiman introduced a new
supervisor, or foreman, Jerry Stewart, exhibit GC-4, page 1.
Shortly thereafter, employee Turcotte came into the plant
lunchroom, on the floor above the work areas. All of the girls
of the afternoon shift were there, said employee Turcotte, and
there was a paper on the table. According to employee Tur-
cotte, Foreman Jerry Stewart sat nearby on the windowsill,
about 8 feet away with the paper on the table in front of him.
Employee Turcotte's leader, Fran Normile, asked her, said
Turcotte, to sign the sheet of paper. Turcotte asked why, and
Leader Normile replied, that it was a paper that we did not
want the Union in the shop. Employee Turcotte told Leader
Normile that she wasn't going to sign . Employee Turcotte
observed the names of other girls on the paper but saw noth-
ing else on it.
Employee Turcotte also observed Foreman Stewart ob-
serving her, and this was confirmed some days later when
Foreman Stewart came by to fix the machine on which she
worked. He asked her why she wasn't as friendly with the
girls on the afternoon shift as with those on the night shift.'
Employee Turcotte replied, because they (on the night shift)
were more friendly to me than those on my shift. Foreman
Stewart then asked her why she hadn't signed her name to the
sheet in the lunchroom, and she answered that she didn't like
it. He then suggested that she try to be more friendly with the
girls on her `shift.
Neither Foreman Stewart, nor Leader Normile, nor other
witness or evidence was produced by Respondent to chal-
lenge the testimony of employee Turcotte, and it stands un-
contradicted and unimpeached.
Section 8(a)(1) findings
The complaint (par. 15(b)) charges that with 'the speeches
of April 8, Respondent sought to unlawfully dissipate the
Union's strength and employee allegiance, by discouraging
employees from joining and becoming members of the Union,
by indicating a fixed mind and intent not to agree to union
security and checkoff provisions in the bargaining, by solicit-
ing employee grievances, by advising it would not permit a
waiver of union initiation fees for some of the employees, and
by giving the employees the impression that selection of the
Union was'an act of futility since it was unlikely that bargain-
ing would be successful. The complaint also alleges (par.
15(a)) that Foreman Stewart's interrogation of employee Tur-
cotte concerning her union sympathies or support was coer-
cive.
The speeches and interrogation viewed together, and in the
context of the contemporaneous fostering of an employee
petition to oust the Union as bargaining representative (not
itself charged as an offense but amply attributable to Re-
spondent), and in the context of Respondent's part miscon-
duct "designed ... to induce employees to repudiate the
Union" (166 NLRB at 775) and more recent misconduct
blocking the Union from obtaining access to requisite plant
information for bargaining (discussed infra), constituted part
of a pattern of deliberate efforts by Respondent to interfere
with and restrain employee support of the Union.
The thrust of the speeches was to divide the employees
from the Union, using more that just views, argument, or
opinion permitted under Section 8(c) of the Act. The Union's
majority status was questioned. Whether the employees
would even have the Union was misrepresented to be the
employer's choice (at the bargaining table), and the payment
or waiver of initiation fees and payment of dues was likewise
misrepresented to be under the employer's control. True,
there was a passing reference to "personal choice" for em-
ployees in signing union cards. But the differences between
employee self-organizational rights, on the one hand, and
obligations under union shop clauses, on the other, were
completely blurred in the total utterances designed to dis-
courage the employees from affiliating with the Union now.
An employer's speech, made to influence employees in the
exercise of their organizational rights, is judged as a whole
and not by dissecting it into separate statements, Daniel Con-
struction Co. v. N.LR.B., 341 F. 2d 805, 811 (C.A. 4, 1965),
cert. denied 382 U.S. 831.
It was suggested to the employees that selecting the Union
was an act of futility, since it was likely that the Union would
make unreasonable demands which the Respondent, bargain-
ing in good faith, would have to reject. The bargaining would
accomplish no more, it was said, than making the present
' The evidence in the case showed greater union strength m the night
shift than in the other shifts, with the two employee representatives on the
negotiating committee coming from that shifft.
350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
company policies (set forth in the booklet, exh. R-11) the
agreement.
Lastly, the employees were urged as the negotiations pro-
gressed to bring their questions and grievances to the manage-
ment . Compare, N.L.R.B. v. Fosdal, 367 F. 2d 784 (C.A. 7,
1966), holding the employer's direct dealings with employees,
while their union representatives were trying to negotiate
with the employer, was a Section 8(a)(1) effort to undermine
the Union's majority.
In the context of Respondent's other antiunion conduct, to
which reference has already been made, Respondent's
speeches as bargaining was about to commence, viewed in
their entirety, constituted violations of Section 8(a)(1).
N..L.R.B. v. Zelrich Co., 344 F. 2d 1011, 1013 (C.A. 5, 1965).
Similarly, the contemporaneous interrogation of employee
Turcotte concerning her support of or sympathy for the
Union violated Section 8(a)(1). N.L.R.B. v. Moore's Seafood
Products, 369 F. 2d 488, 489 (C.A. 7, 1966).
B. Plant Access
In the bargaining sessions the union-employee committee
comprised Jack Balsley, president of UAW Local-189, Frank
LaBita, UAW international representative (for the 1969
meetings), succeeded by Steven Yokich also an UAW inter-
national representative (for the 1970 meetings), and em-
ployees Roberta Wieczorek and Gloria Ferrell, both of the
third or midnight shift. Local President Balsley and Interna-
tional Representative LaBita (succeeded by Yokich) were the
principal spokesmen for the employees.'
' Union Representative LaBita testified only briefly and limitedly on a
few matters. It turned out, as the record and recitals of the evidence herein
reflect, that the testimony material to this decision was provided by others,
and his testimony, from the standpoint of use, was merely cumulative.
Nevertheless , counsel for Respondent argues it was prejudicial error to
refuse to strike all of LaBita 's testimony, because counsel was given permis-
sion to make only limited inspection of a pad or sheaf of notes that LaBita
had in his possession in the courtroom.
The notes were jottings made by negotiator LaBita in the course of the
1969 bargaining sessions. The Trial Examiner adopted the standard that if
the negotiators used their notes of the bargaining meetings to refresh recol-
lection in testifying or to prepare for testifying , the notes were to be made
available for inspection, if requested by cross-examining counsel . This rule
was applied, and availed of by counsel for Respondent , in cross-examining
Union President Balsley, who used his notes in testifying.
In LaBita's case, counsel for Respondent objected to LaBita using the pad
of notes he carried with him to the stand; and, without waiting for a ruling,
LaBita voluntarily removed the notes. He also testified at a later point that
he had not used the notes to prepare for testifying , that he found the pad
the first morning of the trial and brought it with him.
During his direct testimony, LaBita indicated need of help to remember
the negotiating meeting dates. He was allowed to bring his notes back to the
stand and he looked at the tops of the pages to get the dates. He also
volunteered that he glanced at the first page. That constituted the only use
LaBita made of the notes.
Counsel for Respondent was given a postponement for cross -examining
LaBita, that carried over to the next day, in order to read LaBita s lengthy
pretrial affidavits given to the Board. On resuming with LaBita the next day,
Respondent's counsel then demanded the right to inspect all of'LaBita's
notes. The Trial Examiner ruled that counsel for Respondent could examine
the first page of the notes and the tops of the pages showing the dates-the
only portions the witness had used on the stand or inpreparation. Where-
upon Respondent's counsel declined to proceed further with cross-examina-
tion, and moved to strike all of LaBita's testimony . The motion was denied.
On the propriety of the ruling, it is to be noted that LaBita's jottings were
not Jencks Act (18 U.S.C. 3500) statements made to or in possession of the
Board, compare Palermo v. United States, 360 U.S. 343 (1959) Had they
been, Respondent would have been entitled to examine them irrespective
of use by the Board or the witness , under the Board's Regulations Sec.
102.118 (substantially adopting the Jencks Act provisions following the
Jencks decision, 353 U.S. 657). Hence whether the notes were used by the
witness LaBita was material in determining whether Respondent might
For the employer the negotiating team, comprised Re-
spondent's lawyer, Richard Fritz, who was Respondent's
principal negotiator ,, Personnel Manager Shields , and Plant
Manager Stlman,
At the outset of negotiations the union negotiators, LaBita
and Balsley, requested of Respondent's negotiators permis-
sion to enter the plant to observe the plant operation. The
request was denied by Respondent's chief negotiator, Lawyer
Fritz. Thereafter the request, was renewed and denied
throughout the negotiating meetings, according to the union
and employee witnesses; and it was conceded by Lawyer Fritz
that the Union repeatedly asked permission to visit the plant
and that he repeatedly denied,the request.'
Lawyer Fritz testified that he refused plant access to the
union negotiators because it never seemed to him that the
Union was hindered in any respect in making proposals for
job classifications, money, seniority, or any item. So, he con-
tinued, he said to the union negotiators, you don't seem to
need anything, tell me why you need plant access, and hear-
ing nothing, the answer was no. -
The Union told Lawyer Fritz why it wanted plant access,
and put its reasons in writing. Exhibits GC-9 through GC-16
comprise an exchange of correspondence covering the subject
(as well as some others), between the Union's Lawyer Rossen
and Respondent's Lawyer Fritz, April 18, 1969, following the
first negotiating meeting, to November 18, 1969, after the
1969 meetings had broken off. The Union's reasons, initially
given in short form as a need to "inspect the jobs and the
working conditions for aid in contract negotiations," exhibit
GC-9, were spelled out in detail in 12 paragraphs of exhibit
GC-14. Summarized, the reasons included the need: to deter-
mine whether present job classifications and pay rates fit
company descriptions, classifications, and pay rates, and ac-
curately reflect job content; to relate this information, when
obtained, to company proposals on seniority,, layoffs, and
recall; to evaluate and negotiate two new job, classifications
proposed by the company; to evaluate the spacing of presses
and machines, and their condition, as well as the condition
of benches and tools, in relation to working, conditions and
safety of employees; , to inspect and evaluate the, first aid,
lunch, and restrooms; to determine the need for new safety
glasses or work gloves and the need for any other reasonable
provisions 'for health and safety of employees, including
evaluation of contract proposals for washup and rest periods;
and to be aided by on-the-spot communication with em-
ployees concerning working conditions that might be affected
by a, new contract.'
compel inspection of them, Lennon v. United States, 20 V. 2d490,494 (C.A.
8, 1927). It was determined that the witness had not used them in prepara-
tion for trial and had made only the linuted'use on the,- stand, already
described . Inspection was thus a matter of discretion . In my judgment
Respondent's counsel was indulging in gamesmanship, having initially
blocked the witness from use of the notes ass. general aid to recollection and
now proposing to use them as counsel 's general aid in challenging the
witness' recollection . Hence I limited counsel to an inspection of only the
very small part of the notes-that the witness had used. It would appear that
there was neither legal nor prejudicial error.
' Personnel, Manager Shields also testified to at least four such requests
for plant access concerning which he had taken notes, including the first
request by Union Representative LaBita at the first negotiating session April
14, 1969, and a more recent request by Union Representative Yokich when
the second series of negotiations resumed on June 17, 1970.
' In this latter connection, employees Wieczorek and Ferrell pointed out
that they experienced difficulty in explaining to union representatives
LaBita and Balsley some of the physical problems in the plant; and employee
Wieczorek testified that LaBita brought this difficulty to the attention of the
negotiators in one of the sessions when he renewed his request for plant
access, stating that he had to guess about the things the girls were telling
him.
TRIANGLE PLASTICS, INC. 351
The position of Respondent's Lawyer Fritz, from first to
last, in writing and orally, was that the Union's reasons were
not good reasons because the union negotiators did not and
do not need this information-in order to bargain, particularly
since some bargaining has been taking place. Hence, says
Fritz, the Union has provided no reason for plant access and'
without a reason plant access will not be granted by the
Respondent.'
Union President Balsley testified that he has negotiated
collective-bargaining contracts since 1951, and handles con-
tract negotiations involving some 43 plants in the greater
Detroit area. Inspection of plant operation is necessary for
contract negotiations, he said, in order to understand the
plant layout, the types of operation, the machinery, the extent
of automation, comparison of job classifications, safety, and
health problems. He further testified that in his other contract
negotiations he has routinely been permitted'plant visitation
in connection with both initial contract negotiations and
other and later phases of negotiations. He listed by name a
number of the plants where this right has been accorded and
testified that plant access had never been denied him except
in the case of this negotiation.
Union Representative LaBita, a negotiator with,26 years of
experience, and Union Representative Yokich, with 8 years
of negotiating experience, gave similar testimony on the
necessity and utility of visual surveys of plant operation in
negotiation. Yokich noted among other things the
inadequacy of written job descriptions, and the correlation
between proper work classification of employees and their
rights relating to seniority, overtime, and layoffs. Yokich and
LaBita also testified that they had never encountered a refusal
of such access, and they named plants in Detroit and the
surrounding area where access for making visual surveys had
been accorded to them.'
At the resumed negotiations on June 17, 1970, Union Rep-
resentative Yokich requested again the previously denied per-
mission for access to the plant in operation. This time, ac-
cording to both Yokich and Union President Balsley, Lawyer
Fritz stated that, while there was no change in position,
Respondent would be willing to consider a visit by union
representatives to the plant on a Sunday when the plant is not
in operation, with Plant Manager Stiman demonstrating the
operation of the machinery. Balsley and Yokich testified that
they refused the offer stating, said Balsley, that they did not
want to watch supervision operate the machinery, but wanted
to see the regular employees at their regular positions per-
forming in the various phases of operation.
° Lawyer Fritz' stated assumption at trial that the question of access was
now mooted because there is "complete agreement" on the contract, was
factually erroneous, and he made no effort to support his assumption. The
detailed testimony on where the parties stood, by Union Representative
Yokich and Balsley (with some support from Personnel Manager Shields),
and with no contradiction by Shields or Fritz, indicated that the document
of October 1, 1970, exh. R-10(b), to which Fritz referred in assuming "an
agreement," was a combination of some few tentative agreements reached
by the parties and the balance mostly proposals of the Respondent on which
there was no agreement. Yokich's summary was that there was agreement
on some noneconomic matters, substantial disagreements on others, and
none, and no negotiations yet, on economic matters.
' There was testimony in the case about proposals and counterproposals
for plant access in connection with the proposed grievance procedure. That
testimony is no part of this issue.
Section 8(a)(5) finding
"There can be no question of the general obligation of an
employer to provide information that is needed by the bar-
gaining representative for the proper performance of its du-
ties." N.L.R.B. v. Acme Industrial Co., 385 U.S. 432, 435-
436 (1967).
Refusing to let the Union make its own studies of plant jobs
and operating conditions in the plant, as Respondent did
here, violated that obligation and Section S(a)(5J of the Act.
McGraw Edison Co. v. N.L.R.B., 419 F.2d 67, 77 (C.A. 8,
1969). The Union was not required "to play a game of blind
man's bluff," Fafnir,Bearing Co. v. N.L.R.B., 362 F.2d 716,
721 (C.A:, 2,- 1966); quoted with approval by the Supreme
Court in Acme, supra; 385 U.S. at 438, fn. 8; and was not
obliged to depend on what the employees told it about what
was going on in the plant, in place of its own inplant study,
Waycross Sportwear, Inc. v. N.L.RB., 403 F. 2d 832, 836
(C.A. 5, 1968).
Offering to allow the union representatives to see the plant
on Sunday when it was not in operation was hardly a compli-
ance with the good-faith bargaining obligation of Respond-
ent.
Respondent had no reason for denying the union represent-
atives plant access to make their own observations in prepar-
ing for and continuing bargaining, other that its chief negotia-
tor's view that the union representatives did not need the
information in order to bargain adequately. He testified that
there was no particular, additional reason.'° The fact that the
Union was able to make tentative proposals to get bargaining
under way, and to engage in some bargaining on proposals
typical of most collective-bargaining contracts, did not entitle
Respondent to judge that the Union had no need for the
information to be derived from its independent, firsthand
view of the plant operation. The Union's request was timely
and reasonable and supported by a need. Respondent's denial
of union access to the plant for this proper informational
purpose was arbitrary and has hindered negotiations. The
denial constitutes an independent Section 8(a)(5) violation of
Respondent's duty to bargain in good faith. Waycross Sports-
wear, Inc. v. N.L.R.B., supra, 403 F. 2d 832, 836.
C. Wage Information
The alleged failure of Respondent to furnish wage informa-
tion requested by the Union related to the period November
19, 1969, to June 18, 1970.
The holding of bargaining meetings had broken off follow-
ing the October 2, 1969, meeting, according to Union Presi-
dent Balsley, "as a result of the impasse in negotiations," but
correspondence between the parties continued.
In a letter of November 18, 1969, exhibit GC-16, from the
Union's Lawyer Rossen to Respondent's Lawyer Fritz,
Rossen reiterated the necessity for union access to the plant
in order to adequately negotiate matters that had been laid
aside or passed over in an effort to keep negotiations going.
In the last paragraph of the letter Rossen also requested that
10 Respondent's counsel sought to show through testimony of Personnel
Manager Shields that Union Representative LaBita had a frivolous or dis-
ruptive motive in requesting plant access because at one point LaBita sug-
gested if he ever got the permission he might march through the plant with
the largest UAW sign he could find. Respondent's negotiator Fritz put the
incident in perspective by recognizing that the remark was said laughingly
and in a jocular vein. Fritz also eliminated a like argument that LaBita had
not bargained in good faith because LaBita had said at one point he wouldn't
sign the filthy rag or agree to anything put out by Respondent, by noting that
this was simply an outburst on a particular item, such as each of the negotia-
tors had indulged in from time to time, and that it was not significant in the
bargaining.
352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he be sent "any changes in the rates of employees in the unit
since the parties first commenced negotiations on April 14,
1969."
This request on November 18, 1969, for changes in rates
since April 14, 1969, was at least partly if not entirely a stale
request, since the Respondent had supplied the Union with
wage information and information of changes in the 1969
meetings, specifically the wage data on each unit employee at
the start of negotiations, exhibit R-2, dated April 14, 1969
(Fritz to LaBita), and the changes (a general 9 cents-per-hour
increase) proposed June 16, 1969, and made effective July 1,
1969, by a posted notice to employees, June 18, announced
by Respondent and the Union jointly, see exhibits R-5, R-
6(a), and R-6. In the course of the discussions leading to the
joint announcement , the union, negotiators were informed
that it had been company policy to make an annual wage
adjustment at midyear and the company desired to continue
the practice, without prejudice to the pending contract
negotiations, offering the Union the opportunity to join in the
announcement for July 1, 1969.
Apparently there were no further changes in wage rates in
1969 after July 1, and a simple one-sentence letter to that
effect, from Respondent to the Union would, if made, have
taken care of the request of November 18 for information on
changes effected to that date.
In 1970, Respondent notified the Union by letters April27,
1970, exhibit GC-17 (Respondent's Lawyer Kreger to Union
President Balsley), and May 12, 1970, exhibit GC-18 (Kreger
to Balsley), of certain proposed job classification changes and
a proposed increase in the rate for inspectors. As a result, said
Balsley, he requested renewed bargaining sessions, and bar-
gaining resumed at meetings on June 17, July 14, and August
4, 1970, when it was broken off again. Meantime on notice to
the Union, May 27, 1970, exhibit R-8 (Kreger to Balsley),
and June 18, 1970, exhibit GC-19 (Plant Manager Stiman to
Balsley), and posted announcement by Respondent and
Union to the employees on June 23, 1970, exhibit R-9, Re-
spondent put into effect on July 1, 1970, a general 10-cents-
per-hour wage increase.
Conclusion-Dismissal
It is thus apparent that Respondent has not failed to supply
the Union with wage information. There was, technically, a
lapse in response following the letter request Respondent
received on November 19, 1969, asking for any changes since
April 14, a lapse that Respondent might have avoided with
a response to the Union saying in effect, no changes since July
1, 1969, and you (the Union) already have in hand the
changes made before then. However, the request itself was
out of keeping with what had transpired in supplying wage
information between April 14 and July 1, and the staleness
of the request may well have been the fault in not drawing a
further reply from Respondent until changes did begin to
occur in 1970. In any event there is no basis for finding that
the technical lapse in response was a bad -faith lapse or that
it hindered the bargaining.
Accordingly, amended paragraph 14(a) of the complaint,
and the Section 8(a)(5) and (1) charge under it, should be
dismissed.
2. By arbitrarily refusing union representatives access to
the plant in operation in order to make their own studies and
observations of the plant jobs, operating conditions, and
facilities for purposes of negotiating an initial collective-bar-
gaining contract on behalf of the employees, Respondent has
committed an unfair labor practice that has hindered con-
tract negotiations and breached Respondent's duty to bargain
in good faith, in violation of Section 8(a)(5) of the Act.
3. The described unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
4. The charge under paragraph 14(a) of the complaint that
Respondent refused to supply wage data to the Union, be-
tween November 19, 1969, and June 18, 1970, was not estab-
lished and should be dismissed.
THE REMEDY
It will be recommended that Respondent
(1) cease and desist from its unfair labor practices;
(2) give the Union's representatives access to the plant
while in operation, at any or all of the three shifts, to make
their own observations and studies of plant jobs, operating
conditions, facilities, and like matters related to negotiation
of a collective-bargaining contract; and
(3) post the notices provided for herein.
Upon the foregoing findings of fact, conclusions of law, and
the entire record, and pursuant to Section 10(c) of the Act,
there is hereby issued the following recommended:"
ORDER
Respondent, its officers , agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Making coercive speeches or statements to employees
to discourage them from continuing as or becoming members
of the Union, particularly by suggesting doubt of the Union's
majority, misrepresenting the Employer's control over
whether the employees may have the Union and over the
payment or waiver of union initiation fees and payment of
union dues, suggesting the futility of employees selecting the
Union because the Union would be unreasonable and the
bargaining would not be successful, and urging employees to
bring their problems and grievances to management while
contract negotiations are in progress.
(b) Coercively interrogating employees concerning their
sympathy or support for the Union.
(c) In any like manner interfering with, restraining, or
coercing employees in the exercise of their rights guaranteed
under Section 7 of the Act.
2. Take the following affirmative action which is necessary
to effectuate the policies of the Act:
(a) On request, grant to the Union's representatives access
to the plant when in operation, at any or all of the three shifts,
in order to make their own observations and studies of plant
jobs, operating conditions, facilities, and like matters related
to negotiation of a collective-bargaining contract on behalf of
the employees.
(b) Post in its plant at Roseville, Michigan, copies of the
attached notice marked "Appendix B."12 Immediately upon
CONCLUSIONS OF LAW
1. By coercive speeches to all employees, that exceeded the
permissive limits of Section 8(c) of the Act and were designed
to divide the employees from the Union as collective bargain-
ing was about to commence, and by contemporaneous sepa-
rate coercive interrogation concerning employee sympathy or
support for the Union, Respondent has engaged in unfair
labor practices in violation of Section 8(a)(1) of the Act.
" In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings , conclusions , recommendations , and Order herein shall, as provided
in Section 102.48 of the Rules and Regulations, be adopted by the Board
and become its findings , conclusions, and order , and all objections thereto
shall be deemed waived for all purposes.
12 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
order of the National Labor Relations Board" shall be changed to read
TRIANGLE PLASTICS , INC 353
receipt of copies of said notice , on forms to be provided by (c) Notify the Regional Director of Region 7, in writing,
the Regional Director of Region 7 (Detroit , Michigan), the within 20 days from the date of the receipt of this decision,
Respondent shall cause the copies to be signed by one of its what steps the Respondent has taken to comply therewith."
authorized representatives and posted , the posted copies to IT IS FURTHER ORDERED that amended paragraph 14(a) of
maintained for a period of 60 consecutive days thereafter in the complaint be dismissed.
conspicuous places, including all places where notices to em-
ployees are customarily posted . Reasonable steps shall be
taken by the Respondent to insure that said notices are not
altered , defaced , or covered by any other material. In the event that the recommended Order is adopted by the Board after
exceptions have been filed , this provision shall be modified to read "Notify
"Posted pursuant to a judgment of the United States Court of Appeals the Regional Director of Region 7, in writing, within 20 days from the date
enforcing an order of the National Labor Relations Board " of this Order, what steps Respondent has taken to comply therewith "